St. Louis, I. M. & S. Ry. Co. v. Jackson

• Decision Date: 03 March 1906
• Citation: 93 S.W. 746
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. JACKSON.
• Court: Arkansas Supreme Court

Page 746

93 S.W. 746

ST. LOUIS, I. M. & S. RY. CO. v. JACKSON.

Supreme Court of Arkansas.

March 3, 1906.

Appeal from Circuit Court, Franklin County; Jeptha H. Evans, Judge.

Action by John E. Jackson, administrator of the estate of Sam Jackson, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action brought by John E. Jackson as administrator of the estate of Sam Jackson, deceased, to recover damages for the alleged negligent killing of plaintiff's intestate. Deceased was employed by the company as a laborer doing track and grade work, and while in his work was run over by a train of empty cars pushed by an engine. From the injury sustained, it is alleged that he suffered great pain, and died in about two hours thereafter. Negligence of the servants of defendant is alleged in failing to give warning, by bell or whistle, of the approach of the train, and by failing to station a flagman or watchman on the end of the train, to warn the men at work on the track of the approach of the train. The defendant answered, denying all the charges of negligence of its servants, and alleging contributory negligence on the part of the deceased. The injury occurred on November 16, 1903, near Mulberry Station, in Franklin county, where the defendant company was engaged in reconstructing its line of road and lowering the grade line. A steam shovel was operated at the place in cutting through a hill. The track on which the steam shovel was being operated had become soft and muddy from recent rains, and a large number of laborers (including deceased) were engaged in putting in gravel and sand under the ties to support the track. Two locomotives were engaged at the place, one in hauling out the cars which had been loaded with dirt by the shovel, and the other in setting in the empty cars to be loaded, and in moving them forward as they were loaded. One engine had pulled out a long string of loaded cars, and backed them down upon a passing track, when the other engine pushed a line of empty cars upon the track where deceased and the other laborers were at work. The speed of the train was variously estimated by the witnesses at from 12 to 25 miles per hour. Deceased and three other men were engaged, two and two facing each other, in putting gravel and sand under a cross-tie, deceased having his back to the approaching train when he was run over. Three of the men were killed, and the survivor was injured. The right arm of the deceased was cut off, his cheek bone and breast bone crushed, all the ribs on his left side broken and a hole punched in his back. He was placed in a car immediately, and taken to Mulberry where he expired about the time the car arrived.

The survivor of the three men at work with deceased testified at the trial, and gave a detailed account of the occurrence. He said that the four men were at the time stooping over, tamping gravel and sand under the cross-tie, were engaged in talking, and did not pay any attention to the approach of the train, that the train did not make much noise as it approached. He testified that he heard no signal or warning of the approach of the train, and saw no one on the end of the train. On cross-examination he was asked whether or not the men were engaged in conversation and replied: "I do not recollect, could not tell you positively, expect maybe we were; we were always talking, I never worked in a gang in my life that were not always talking and laughing." The following question was asked him and answer returned: "Q. State to the jury if in tamping ties it does not require all your time and attention to look after that? A. It requires a whole lot of time and attention to look after that." He further stated that it was customary, when the engine was moving cars, to give signals by ringing the bell, and to keep a man posted on the end of the train. Other evidence tended to show that no signal was given by bell or whistle, and no lookout kept from the front end of the train. There was also evidence tending to show that the foreman gave instructions to the men generally to keep out of the way of trains. The following rule of the company was introduced in evidence, viz.: "When cars are pushed by an engine (except when shifting and making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need." There was evidence to the effect that orders were issued daily for the two engines operated at that place to work between the stations, Dyer and Mulberry, as working limits, and that yard rules were considered as applicable between these limits.

The court, of its own motion, gave to the jury the following, which were all the instructions given: "(1) The defendant owed to the plaintiff's intestate the duty to use ordinary care and prudence, considering the perils, dangers and necessities of the situation, to provide a reasonably safe place for plaintiff's intestate to carry on his work, but was not an insurer of his safety. Ordinary care is that care that an ordinarily prudent and careful man would have used under the circumstances given in proof. If the defendant used such care, then it is not liable in this action. If it failed to use such care to provide such a place to work, and by reason of such failure conscious suffering of plaintiff's intestate proximately resulted, then you will find for the plaintiff, unless it should appear also that plaintiff's intestate was lacking in such care for his own safety as an ordinarily prudent and careful person under all the circumstances would have exercised, in which case you should find for the defendant. (2) If you find for the plaintiff you will assess the damages at such a sum, not exceeding the amount claimed in the complaint, as from the evidence you may believe to be a fair compensation for such conscious suffering, if such conscious suffering is shown by the proof. (3) Contributory negligence is such a want of care on the part of plaintiff's intestate for his own safety as an ordinarily prudent and careful person would have exercised under all the circumstances, and which caused or contributed to the injury sued for in this action. The burden of showing contributory negligence is on the defendant, unless it sufficiently appears from the evidence submitted on the part of the plaintiff. (4) Plaintiff's intestate was required to use his own senses, and to take notice of those things which an ordinarily careful and prudent person situated as he was would have observed, by a proper use of his senses in connection with his duties as an employé of defendant, pursuing his labor in defendant's behalf, and in this case if you find from a preponderance of the evidence that plaintiff's intestate did not do so, plaintiff cannot recover. But if such is not shown, then plaintiff is not barred from a recovery on the ground of contributory negligence of his intestate. (5) If plaintiff's intestate was absorbed in the performance of the duties of his employment, and was thus oblivious to danger and did not see, and did not hear, the train approaching him, and if a man of ordinary prudence and care for his own safety situated as plaintiff's intestate was would have been so absorbed, so oblivious to his surroundings, and would not have seen and would not have heard the train approaching, then plaintiff's intestate was not guilty of contributory negligence which would bar a recovery in this case. (6) The burden of proving a want of ordinary care on the part of defendant to provide a reasonably safe place for plaintiff's intestate to work is on the plaintiff, and this must appear from a preponderance of the evidence to authorize a recovery. And the burden is on the defendant to show by a preponderance of the evidence contributory negligence, which will defeat a recovery unless such contributory negligence appears from a preponderance of the evidence submitted by the plaintiff, and if contributory negligence appears from the proof on either side, you will find for the defendant, although you may also find that defendant was guilty of negligence."

The jury returned a verdict in favor of plaintiff assessing damages in the sum of $500, and the defendant appealed.

Oscar L. Miles, for appellant. Sam R. Chew, for appellee.

McCULLOCH, J. (after stating the facts).

1. It is urged by counsel, apparently with much confidence, that the charge of the court was too general, and failed to direct the attention of the jury specifically to the issues involved. We...